[No. 467, a.] OPINION As to the proper course to be taken in behalf of soldiers who shot deserters. LETTER AND ANSWER. Hon. WILLIAM WHITING, WASHINGTON CITY, Solicitor of War Department. DEAR SIR: I have just received a letter from Thomas Wilson, Esq., Attorney at Law, Davenport, Iowa, from which I make the following extracts: "You remember the men (soldiers) who shot the colored man in Davenport on December 25, 1863. I. W. Stewart and myself are for the defence. Frazer (the corporal) pleaded guilty of assault and battery, and got thirty days in jail. Knapp, Company H., Fifth Iowa Infantry, who did the shooting, has a change of venue to Clinton county. Court commences to-morrow (March 6), and the trial will possibly commence on March 19. These men were soldiers actually on duty, as Provost Guard from Camp McClellan. Frazer was the corporal in command, and commanded the arrest, and in making the arrest the shooting occurred. This would be a good defence in Knapp's case before a military court, but not before a civil tribunal. We wish to get Knapp turned over to military authority, under section 30, Conscription Act, May 3, 1863, and to that end I have written (in Knapp's name) to General Sully, who refused to demand him from the civil authorities, and I sent the communication to the Adjutant General United States Army. "I then made the same demand on Lieutenant-Colonel Greer, who transmitted it direct to Adjutant-General United States Army, both asking opinion of the Solicitor, Mr. Whiting, of said section 30. Three weeks have passed, and we have not heard from it. If two weeks more pass, he will have been tried and convicted by civil court. “Will you be kind enough to see Mr. Solicitor Whiting, if he has received the communications, and will answer. "The legal proposition is this: If a soldier in the United States service, amenable to the articles of war, engaged in performance of actual duty, under the command of an officer, commits one of the crimes, say murder, mentioned in section 30, in the State of Iowa, and does it by the express command of his officer, will he be taken and tried by a military court, under the provisions of said section 30, or will he be allowed to remain in the hands of the civil authority? "Mr. Solicitor Whiting has published a small book, being his opinions on military arrests. It has some good authorities for us; will you be kind enough to obtain a copy for us, to be used on the trial, and send to me." An early answer to the foregoing will much oblige, (Signed) Very truly yours, &c., H. PRICE. WAR DEPARTMENT, SOLICITOR'S OFFICE, H. PRICE, Esq. DEAR SIR: Yours of the 12th instant has been received, containing extracts from letter of Thomas Wilson, Esq., of Davenport, Iowa, inquiring, "If a soldier in the United States service, amenable to articles of war, engaged in performance of actual duty, under the command of an officer, commits one of the crimes, say murder, mentioned in section 30, in the State of Iowa, and does it by the express command of his officer, will he be taken and tried by a military court, under the provisions of said section 30, or will he be allowed to remain in the hands of civil authority ?" In answer to this, and other inquiries contained in your letter, I have the honor to reply, That the 30th section of the Act of March 3, 1863, ch. 81, gives jurisdiction to general courts martial and military commissions, over persons in the military service of the United States, who, being subject to the articles of war, shall have committed in time of war, insurrection, or rebellion, either of the crimes therein enumerated, including the crime of murder. ́ But this jurisdiction is not exclusive of, but is concurrent with, that of civil tribunals. Under the fifth amendment to the Constitution, no person shall "be subject, for the same offence, to be twice put in jeopardy of life or limb.” Therefore, no person can be lawfully condemned by any court, military or civil, for a crime of which he has previously been convicted or acquitted by a court having jurisdiction of the person and of the offence. Where courts have concurrent, but not exclusive jurisdiction, that court which first gains jurisdiction, excludes all others therefrom. If a soldier in service, accused of "murder," is first indicted and arrested by the proper civil authorities of Iowa, they exclude the jurisdiction of the military courts over that crime; so if the soldier had been arrested for trial for that offence by a court-martial, the civil tribunals would have no right to interfere. It is not doubted that in time of war, military necessity will, under certain circumstances, justify the interruption of all proceedings by courts of law, which may in any way burden, impede, or oppose military movements, or aid and comfort the enemy. Nor is it doubted that, without the assent of military authorities, no civil court, or other civil authority of any State, can subject soldiers, in the service of the United States, to their commands, or can in any other way interfere with the strict performance of their military duties. But when the commander of a Department finds it not incompatible with his military duties to permit the soldier to be tried by civil courts, he usually does so, out of respect to local authorities, and with a view of interfering as little as possible with the ordinary course of the administration of justice. It is obvious that there ought to be some way by which, in all cases, officers who have committed homicides, or other acts of violence, in the discharge of their duties, should be protected under the law; and some procedures by which the same rules of law should be applied in all parts of the country. It would be discreditable to the administration of justice if the same act should be pronounced a crime in one State, and a justifiable act of duty in another. Hence there ought to be some mode of applying uniform rules of law, by one tribunal, to all like cases, wherever they arise. This purpose has been effected by the 5th section of the Act of March 3, 1863, ch. 81, which provides for the removal of all actions, civil or criminal, commenced in any State court, against any person, for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or any act omitted to be done, at any time during the present rebellion, by virtue or under any color of any authority derived from or exercised by the President of the United States, or any Act of Congress, and this section prescribes also the proceedings for such removal, and forbids proceedings in the case by State courts after such removal, and transfers them to the courts of the United States. The 6th section removes, in cases of error, the final decisions to the Supreme Court of the United States. Therefore, while civil courts are allowed to retain concurrent jurisdiction of persons in the service, who have committed crimes punishable by military tribunals, the accused are thus made certain of securing impartial justice, administered under uniform rules, and are freed from the dangers of prejudice, by excitement of local juries, or by the errors of hostile or uninformed judges. I recommend that the cases of the soldiers (who shot the deserter) should be removed from the State court of Iowa, to the United States Court, and that there should be, under the circumstances, no interference with the civil tribunals by military authority. This recommendation is made, not because I have any want of respect or confidence in the eminent judge before whom the case is pending, but because it is desirable that the practice should be uniform. I forward herewith some copies of the Essay on Military Arrests, and I trust that they will indicate the grounds of defence which will be of avail to the accused. (Signed) Your obedient servant, Very respectfully, WILLIAM WHITING, Solicitor of the War Department. [No. 487.] Claims for Cotton seized. W. W. CONES. A number of claims for cotton seized and sold at Memphis, Tennessee, presented by Mix & Co. OPINION. The claim of W. W. Cones, referred to me, is for the proceeds of 252 bales of cotton seized by the forces of the United States in December, 1862, in La Fayette county, in the northern part of the State of Mississippi, transported thence to Memphis, Tennessee, and there, by order of General Grant, sold at auction, for the benefit of the United States, at 80 cents per pound. The net proceeds of sale were paid over by the Rental Officer to the Quarter-master's Department. Mr. Cones has never been in possession of the cotton, but alleges that he had a good title by lawful purchase from loyal owners, within the lines of trade, established by law under the Regulations of the Treasury. In support of this title, he produced copies of certain documents, of licenses issued to him to buy cotton, of agreements for sales of cotton made by one Denton, professing to be an agent of Cones, of bills of sale receipted, of certificates, letters, &c., — of all of which the originals should be required if the claim be further urged. Dealing, however, with these copies as if they had been originals, Mr. Cones has not presented evidence sufficient to maintain his claim. 1. It does not appear that the agent, Denton, with whom the contracts relied on were made, had authority from the original owners of the cotton to make sales of it, at any time previous to its seizure by the United States. 2. It does not appear that Cones, on his part, had the right to exercise the privilege of trading under a Treasury license, by means of an agent or agents. This privilege was personal, granted to him because he was supposed to be a loyal, discreet, and honest man, and it could not be exercised at his pleasure, by deputies of any character, or in any numbers, unknown to the Treasury Department.* 3. It does not appear that, at the date of the contract, W. A. Thornburgh, who undertook to act in Cone's behalf, had, in fact, been authorized by him to purchase cotton under his license. 4. It does not appear that the cotton itself was, at the time of the alleged purchase, within the lines of the army of the United States, as established by the order of Major-General Grant; but it is probable, upon the evidence, that it was without south of, and beyond, those lines; and therefore not the subject of lawful trade between loyal citizens and public enemies. 5. It does not appear that the cotton had not been actually seized by the United States troops, when Denton, as agent of the planters, undertook to * See Ouachita case, 6 Wallace, ; McKee v. United States, 9 Wallace, 166. sell it. The precise time of seizure is not stated; but the evidence tends strongly to show that the seizure preceded the attempted sale. If so, the claim now presented cannot be maintained. 6. The alleged payment by Cones of the agreed price, twenty-five cents per pound, to the agent of the planters, is not sufficiently proved; but if made, it gave Cones no title to the cotton, if he had not a valid one before. It was made voluntarily, with full knowledge of the facts that the planters could not perform their part of the contract, and that the cotton had been seized and ordered to be sold, by the highest military authority in that Department. If Cones paid in his own wrong, he must look for reimbursement to the parties who received his money, and not to the United States. 7. If the character of the several planters by whom the cotton was raised and for whom it was sold, be considered, the proof of their loyalty is not sufficient; indeed, it is admitted that two of them were in the rebel army. I recommend, therefore, that no action be taken by this Department concerning this claim. October 1, 1864. (Signed) WILLIAM WHITING, Solicitor of the War Department. [No. 518.] Draft of a Bill for Adjustment of the Claim of Aliens against the United States, arising since the War. The Secretary of State submits to the Secretary of War, a Bill for the above purpose, for suggestion and amendment. OPINION. I have the honor to report that the Bill was framed by me, at the request of the Hon. Mr. Seward, aided by suggestions from him, and improved by one or two amendments subsequently made by him, and it appears to me to be carefully considered, and well calculated to answer the purposes for which it was drawn. I had supposed that the Secretary of State would take occasion to confer personally with you upon the question of the expediency of adopting this, or any other plan, at the present time, for establishing a tribunal with power to adjust foreign claims. That conference not having as yet occurred, I deem it my duty to suggest, for your consideration, the questions, 1. Whether it is expedient to inaugurate a system providing for the adjustment and payment of foreign claimants, prior to, and independent of, any measures of legislation looking to the settlement of claims of our own citizens. 2. Whether it will be profitable to protect the interests of the United |